| 103
U.S. 304 13 Otto 304,
26 L.Ed. 481 (Cite
as: 103 U.S. 304) Supreme
Court of the United States MILES v. UNITED
STATES October
Term, 1880 West
Headnotes Bigamy
k13 55k13 Criminal
Law k406(1) 110k406(1) On
indictment for bigamy, the first marriage may be proved by the admissions of the
prisoner, and it is for the jury to say whether what he said was an admission
that he was actually and legally married according to the laws of the country
where the marriage was solemnized. Criminal
Law k789(9) 110k789(9) In
a criminal case, the prisoner's guilt must be established beyond a reasonable
doubt; and an instruction that proof beyond a reasonable doubt is such as will
produce an abiding conviction in the minds of the jury to a moral certainty that
the fact exists that is claimed to exist, so that the jury feel certain that it
exists, is not objectionable. Criminal
Law k1158(1) 110k1158(1) Evidence,
in a criminal case, will not be reviewed by the supreme court to see if it justified
a conviction. Criminal
Law k1158(1) 110k1158(1) The
Supreme Court cannot reexamine questions of fact upon a writ of error in view
of Rev.Stat. section 1011. Criminal
Law k1158(3) 110k1158(3) Where
triers found that jurors who stated that they believed that polygamy was ordained
by God were not free from bias or prejudice on a trial of bigamy of a person who
entertained the same belief and whose offense consisted in the act of living in
polygamy, the finding of the triers was conclusive. Indictment
and Information k196(6) 210k196(6) In
prosecution for bigamy, it was too late after verdict to object that the description
of the woman named in the indictment as a person with whom the crime of bigamy
was committed was not sufficiently specific. Jury
k105(1) 230k105(1) As
respects right to exclude jurors who stated on their voir dire that they believed
that polygamy was ordained by God in trial of a person for bigamy who entertained
the same belief, whether the bias of the jurors was bounded on religious belief
was immaterial, if the bias existed. Jury
k131(8) 230k131(8) At
common law a belief by jurors that polygamy was ordained by God and that the practice
of polygamy was obedience to the will of God would have been ground for a principal
challenge of the jurors of the same faith. Jury
k131(8) 230k131(8) On
trial of a person for bigamy, it was no invasion of the constitutional rights
of the juror to inquire whether he himself was living in polygamy, and whether
he believed it to be in accordance with the divine will and command. Bigamy
k5 55k5 There
is no variance between an indictment for bigamy, alleging a second marriage with
Caroline Owens, and evidence that such marriage was with Caroline Owen Maile,
afterwards and generally known as Caroline Owen. Bigamy
k10 55k10 Evidence
is admissible that the alleged second wife was in the Endowment House, in Salt
Lake City, where secret and clandestine marriages are solemnized, on a certain
day, and that she then wore such a dress as is worn usually by those who go there
to contract such marriages. Federal
Courts k1022 170Bk1022 (Formerly
106k429) In
impaneling a jury, a federal court was bound to follow the law of the Territory
on that subject in which the court was sitting. Witnesses
k57 410k57 As
long as the fact of the husband's first marriage is contested, the second wife
is an incompetent witness to prove such first marriage. Where it has by other
evidence been duly established to the satisfaction of the court, she may be admitted
to prove her marriage with him. Witnesses
k79(1) 410k79(1) Witnesses
who are prima facie competent but whose competency is disputed are allowed to
give evidence on their voir dire to the court upon some collateral issue on which
their competency depends, but the testimony of a witness who is prima facie incompetent
cannot be given to the jury upon the very issue involved in order to establish
his competency and at the same time to prove the issue. ERROR
to the Supreme Court of the Territory of Utah. The
facts are stated in the opinion of the court. Mr.
Arthur Brown, Mr. W. N. Dusenberry, and Mr. E. D. Hoge for the plaintiff
in error. Mr.
Assistant Attorney-General Smith, contra. MR.
JUSTICE WOODS delivered the opinion of the court. Sect. 5352 of the Revised Statutes
of the United States declares:----
'Every
person having a husband or wife living, who marries another, whether married or
single, in a Territory or other place over which the United States has exclusive
jurisdiction, is guilty of bigamy, and shall be punished by a fine of not more
than five hundred dollars and by imprisonment for a term not more than five years.' The
plaintiff in error was indicted under this section in the Third District Court
of Utah, at Salt Lake City. He was convicted. He appealed to the Supreme Court
of the Territory, where the judgment of the District Court was affirmed. That
judgment is now brought to this court for review upon writ of error. The
indictment charged that the plaintiff in error, John Miles, did, on Oct. 24, 1878,
at Salt Lake County, in the Territory of Utah, marry one Emily Spencer, and that
afterwards, and while he was so married to Emily Spencer, and while she was still
living, did, on the same day and at the same county, marry one Caroline Owens,
the said Emily Spencer, his former wife, being still living and at that time his
legal wife. The
criminal procedure of Utah is regulated by an act of the territorial legislature,
passed Feb. 22, 1878. The following are the sections pertinent to this case, which
prescribe the rules for the impanelling of juries:----
'SECT.
241. A particular cause of challenge is:---- '1.
For such a bias as, when the existence of the facts is ascertained, in judgment
of law, disqualifies the juror, and which is known in this act as implied bias. '2.
For the existence of a state of mind on the part of the juror which leads to a
just inference, in reference to the case, that he will not act with entire impartiality,
which is known in this act as actual bias. 'SECT.
246. If the facts are denied, the challenge must be tried as follows: (1.)
If it be for implied bias, by the court; (2.) If it be for actual bias, by triers.' 'SECT.
247. The triers are three impartial persons, not on the jury panel, appointed
by the court. All challenges for actual bias must be tried by three triers
thus appointed, a majority of whom may decide.' 'SECT.
249. Upon the trial of a challenge to an individual juror, the juror challenged
may be examined as a witness to prove or disprove the challenge, and must answer
every question pertinent to the inquiry.' 'SECT.
250. Other witnesses may also be examined on either side, and the rules of evidence
applicable to the trial of other issues govern the admission or exclusion of evidence
on the trial of the challenge.'
'SECT.
252. On the trial of a challenge for actual bias, when the evidence is concluded,
the court must instruct the triers that it is their duty to find the challenge
true, if, in their opinion, the evidence warrants the conclusion that the juror
has such a bias against the party challenging him as to render him not impartial;
and that if, from the evidence, they believe him free from such bias, they must
find the challenge not true; that a hypothetical opinion unaccompanied with malice
or ill-will, founded on hearsay or information supposed to be true, is of itself
no evidence of bias sufficient to disqualify a juror. The court can give no other
instruction.' 'SECT.
253. The triers must thereupon find the challenge either true or not true, and
their decision is final. If they find it true, the juror must be excluded.' Upon
the trial of the case in the District Court of the Territory, Oscar Dunn and Robert
Patrick were called as jurors. They were challenged for actual bias, and sworn
upon their voire dire. Three triers were appointed by the court to pass
upon the challenges to the jurors. Dunn, in answer to questions propounded to
him, testified that he believed polygamy to be right, that it was ordained of
God, and that the revelations concerning it were revelations from God, and that
those revelations should be obeyed, and that he who acted on them should not be
convicted by the law of the land. The
juror was challenged by the prosecution 'for actual bias for the existence of
a state of mind on his part which led *307 to a just inference that he
would not act with entire impartiality.' The
triers found the challenge true, and the juror was rejected. Robert
Patrick was examined on his voire dire, and testified that he believed
that the revelation given to Joseph Smith touching polygamy came from God, that
it was one of God's laws to his people, and that he who practised polygamy, conscientiously
believing that revelation to be from God, was doing God's will. He also testified
that, in his opinion, the law of Congress was in conflict with that law of God;
that Congress had the right to pass such a law; and that on the trial of a person
who was in the practice of polygamy charged with bigamy he would consider it his
duty, if satisfied by the evidence, to find the defendant guilty, and that he
would do so. The
juror was challenged for actual bias, and the triers found the challenge true,
and the juror was excused. A large number of other jurors were examined and challenged,
and excused on the same grounds. Upon
the trial, evidence was given tending to show that a short time before the date
laid in the indictment, Oct. 24, 1874, the plaintiff in error was in treaty for
marrying, at or about the same time, three young women, namely, Emily Spencer,
Caroline Owens, and Julia Spencer, and that there was a discussion between them
on the question which should be the first wife; and that upon appeal to John Taylor,
president of the Mormon Church, the plaintiff in error and the three women being
present, it was decided by him that Emily Spencer, being the eldest, should be
the first wife; Caroline Owens, being the next younger, the second; and Julia
Spencer, being the youngest, the third wife;--that being according to the rules
of the church. It
appeared further that marriages of persons belonging to the Mormon Church usually
take place at what is called the Endowment House; that the ceremony is performed
in secret, and the person who officiates is under a sacred obligation not to disclose
the names of the parties to it. It
further appeared that on Oct. 24, 1878, the plaintiff in error was married to
the said Caroline Owens, and that on the *308 night of that day he gave
a wedding supper at the house of one Cannon, at which were present Emily Spencer,
Caroline Owens, and others. Evidence tending to establish these facts having been
given to the jury, the court permitted to be given in evidence the declarations
made by the plaintiff in error, on that night, in presence of the company assembled,
and on subsequent occasions, to the effect that Emily Spencer was his first wife. Sect.
1604 of the Compiled Laws of Utah declares: 'A husband shall not be a witness
for or against his wife, nor a wife a witness for or against her husband.' Upon
the trial, and after the evidence above recited had been given, tending, as the
prosecution claimed, to prove the marriage of the plaintiff in error to Emily
Spencer just before his marriage to Caroline Owens, the latter was offered as
a witness against him to prove the same fact. Thereupon
the defendant admitted, in open court, the charge of the indictment that he had
been married to Caroline Owens, and enen offered testimony to prove it; but this
was ruled out by the court. The
defendant, therefore, objected to the introduction of Caroline Owens as a witness
against him, the objection being based on the statute just quoted. The
court overruled the objection and admitted her as witness, and she gave testimony
tending to prove the marriage of the plaintiff in error to Emily Spencer previous
to his marriage with the witness. It
appeared from the evidence that the name of Caroline Owens's father was Maile,
but that she had been adopted by an uncle and aunt named Owens, and had taken
their name, by which she was called and known, but that, when she was baptized
in the Mormon Church, she was required to be baptized in her father's name, and
was married to Miles under that name. The
court, among other things, charged the jury as follows:----
'If
you find from all the facts and circumstances proven in this case, and from the
admissions of the defendant, or from either, that the defendant Miles married
Emily Spencer, and *309 while she was yet living and his wife he married
Caroline Owens, as charged in the indictment, your verdict should be guilty.
'A
legal wife cannot, but when it appears in a case that the witness is not a legal
wife, but a bigamous or plural wife, then she may testify against the bigamous
husband, and her testimony should have just as much weight with the jury as any
other witness, if the jury believe her statements to be true. And her evidence
may be taken like the evidence of any other witness to prove either the first
or second marriage. And so in this case you are at liberty to consider the testimony
of Miss Caroline Owens, if you find from all the evidence in the case that she
is a second and plural wife, and give it all the weight you think it entitled
to, and may use it to prove the first marriage alleged, to wit, the marriage of
defendant and Emily Spencer, or any other fact which in your opinion is proven
by the testimony, if you believe it, as you do the testimony of any witness to
prove any fact about which she has testified. 'The
prisoner's guilt must be established beyond reasonable doubt. Proof beyond a reasonable
doubt is such as will produce an abiding conviction in the mind to a moral certainty
that the fact exists that is claimed to exist, so that you feel certain that it
exists. A balance of proof is not sufficient. A juror in a criminal case ought
not to condemn unless the evidence excludes from his mind all reasonable doubt;
unless he be so convinced by the evidence, no matter what the class of the evidence,
of the defendant's guilt, that a prudent man would feel safe to act upon that
conviction in matters of the highest concern and importance to his own dearest
personal interests.' The
plaintiff in error alleges as ground of error the exclusion from the jury of Oscar
Dunn, Robert Patrick, and others of the Mormon faith. He claims that the examination
of the proposed jurors, and the rulings of the court, show that it was the deliberate
purpose of the court to exclude from the jury every one who was of the Mormon
faith. He insists that neither the court nor counsel had the right to inquire
into the religious belief of the juror. There
is no complaint that the jury was not a fair and impartial one, or that any juror
impanelled was disqualified. Whether
the exclusion of qualified jurors from the panel is a ground for setting aside
the verdict and judgment on error, we do not find it necessary to decide. It
is insisted on behalf of the defendant in error that the excluded jurors were
not qualified to sit in the case. In impanelling the jury the court was bound
to follow the law of the Territory on that subject. Clinton v. Englebrecht,
13 Wall. 434; Reynolds v. United States, 98 U.S. 145. The
jurors excluded were objected to by the prosecution as disqualified from serving
for actual bias. The
challenge for actual bias was tried by the triers appointed by the court, in accordance
with the law of the Territory. The triers found the challenge true. By the same
law their decision is declared to be final, and thereupon the jurors challenged
must be excluded. The law was carefully followed. The jurors were found disqualified,
and were, therefore, as required by the law, excluded from the panel. It
is evident from the examination of the jurors on their voire dire, that
they believed that polygamy was ordained of God, and that the practice of polygamy
was obedience to the will of God. At common law, this would have been ground for
principal challenge of jurors of the same faith. 3 Bla. Com. 303. It needs no
argument to show that a jury composed of men entertaining such a belief could
not have been free from bias or prejudice on the trial for bigamy, of a person
who entertained the same belief, and whose offence consisted in the act of living
in polygamy. But whether the evidence of bias was sufficient or not, it was so
found by the triers, and that was conclusive. Whether
or not that bias was founded on the religious belief of the juror, is entirely
immaterial, if the bias existed. It has been held by this court, that on an indictment
for bigamy it was no defence that the doctrines and practice of polygamy were
a part of the religion of the accused. Reynolds v. United States, supra. It
could not, therefore, be an invasion of the constitutional or other rights of
the juror called to try a party charged with bigamy, to inquire whether he himself
was living in polygamy, *311 and whether he believed it to be in accordance
with the divine will and command. If
the jurors themselves had no ground of complaint, it is clear the defendant had
none. We
find nothing in the record in relation to the impanelling of the jury which would
have required the Supreme Court of the Territory to set aside the verdict and
the judgment of the District Court. It
is next assigned for error, that the court admitted the declarations and admissions
of the plaintiff in error to prove the fact of his first marriage, and the charge
of the court that the declarations of the accused were evidence proper to be considered
by the jury as tending to prove an actual marriage, and that such marriage might
be proven like any other fact, by the admissions of the defendant, or by circumstantial
evidence, and that it was not necessary to prove it by witnesses who were present
at the ceremony. To
hold that, on an indictment for bigamy, the first marriage can only be proven
by eye-witnesses of the ceremony, is to apply to this offence a rule of evidence
not applicable to any other. The
great weight of authority is adverse to the position of the plaintiff in error. In
Regina v. Simmonsto (1 Car. & Kir. 164), it was held that, on an
indictment for bigamy, the first marriage may be proved by the admissions of the
prisoner; and it is for the jury to determine whether what he said was an admission
that he had been legally married according to the laws of the country where the
marriage was solemnized. The
same view is sustained by the following cases: Regina v. Upton,
cited in 1 Russell, Crimes (Greaves's ed.), 218; Duchess of Kingston's Case,
20 How. State Trials, 355; Truman's Case, 1 East, P. C. 470; Cayford's
Case, 7 Me. 57; Ham's Case, 11 id. 391; State v. Libby,
44 id. 469; State v. Hilton, 3 Rich. (S. C.) 434; State v.
Britton, 4 McCord (S. C.), 256; Warner v. Commonwealth, 2 Va.
Cas. 595; Norwood's Case, 1 East, P. C. 470; Commonwealth v.
Murtagh, 1 Ashm. (Pa.) 272; Regina v. Newton, 2 Moo. & R.
503; State v. McDonald, 25 Miss. 176; Wolverton v. State,
16 Ohio, 173; State v. Seals, *312 16 Ind. 352; Quin
v. State, 46 id. 725; Arnold v. State, 53 Ga. 574; Cameron
v. State, 14 Ala. 546; Brown v. State, 52 id. 338; Williams
v. State, 44 id. 24; Commonwealth v. Jackson, 11 Bush (Ky.),
679. The
declarations of the plaintiff in error touching his marriage with Emily Spencer,
admitted in evidence against him, appear to have been deliberately and repeatedly
made, and under such circumstances as tended to show that they had reference to
a formal marriage contract between him and her. We
are of opinion that the District Court committed no error in admitting such declarations,
or in its charge to the jury concerning them. The
charge of the court defining what is meant by the phrase 'reasonable doubt' is
assigned as ground of error. The
evidence upon which a jury is justified in returning a verdict of guilty must
be sufficient to produce a conviction of guilt, to the exclusion of all reasonable
doubt. Attempts to explain the term 'reasonable doubt' do not usually result in
making it any clearer to the minds of the jury. The language used in this case,
however, was certainly very favorable to the accused, and is sustained by respectable
authority. Commonwealth v. Webster, 5 Cush. (Mass.) 295; Arnold
v. State, 23 Ind. 170; State v. Nash, 7 Iowa, 347; State
v. Ostrander, 18 id. 435; Donnelly v. State, 2 Dutch. (N.
J.) 601; Winter v. State, 20 Ala. 39; Giles v. State,
6 Ga. 276. We
think there was no error in the charge of which the plaintiff in error can justly
complain. The
plaintiff in error next alleges that the description of the woman named in the
indictment as the person with whom the crime of bigamy was committed, was not
sufficiently specific, and that on the trial she turned out to be not Caroline
Owens, but Caroline Maile. The
designation of Caroline Owens as the person with whom the second marriage was
contracted is clearly sufficient. If it were not, it is too late after verdict
to object. As to the fact, the jury has found that the person whom the plaintiff
in error was charged to have married while his first wife was living, and still
his legal wife, was Caroline Owens and not Caroline Maile, and that question is,
therefore, conclusively settled by the verdict. *313 This court cannot
re-examine questions of fact upon writ of error. Rev. Stat., sect. 1011. The
plaintiff in error lastly claims that the court erred in allowing Caroline Owens,
the second wife, to give evidence against him touching his marriage with Emily
Spencer, the alleged first wife; and in charging the jury that they might consider
her testimony, if they found from all the evidence in the case that she was a
second and plural wife. This
assignment of error, we think, is well founded. The
law of Utah declares that a husband shall not be a witness for or against his
wife, nor a wife for or against her husband. The
marriage of the plaintiff in error with Caroline Owens was charged in the indictment
and admitted by him upon the trial. The fact of his previous marriage with Emily
Spencer was, therefore, the only issue in the case, and that was contested to
the end of the trial. Until the fact of the marriage of Emily Spencer with the
plaintiff in error was established, Caroline Owens was prima facie his
wife, and she could not be used as a witness against him. The
ground upon which a second wife is admitted as a witness against her husband,
in a prosecution for bigamy, is that she is shown not to be a real wife by proof
of the fact that the accused had previously married another wife, who was still
living and still his lawful wife. It is only in cases where the first marriage
is not controverted, or has been duly established by other evidence, that the
second wife is allowed to testify, and she can then be a witness to the second
marriage, and not to the first. The
testimony of the second wife to prove the only controverted issue in the case,
namely, the first marriage, cannot be given to the jury on the pretext that its
purpose is to establish her competency. As her competency depends on proof of
the first marriage, and that is the issue upon which the case turns, that issue
must be established by other witnesses before the second wife is competent for
any purpose. Even then she is not competent to prove the first marriage, for she
cannot be admitted to prove a fact to the jury which must be established before
she can testify at all. Witnesses
who are prima facie competent, but whose competency is disputed, are allowed
to give evidence on their voire dire to the court upon some collateral
issue, on which their competency depends, but the testimony of a witness who is
prima facie incompetent cannot be given to the jury upon the very issue in
the case, in order to establish his competency, and at the same time prove the
issue. The
authorities sustain these views. Upon
a prosecution for bigamy under the statute of 1 Jac., c. 11, it was said by Lord
Chief Justice Hale: 'The first and true wife is not allowed to be a witness against
her husband, but I think in clear the second may be admitted to prove the second
marriage, for she is not his wife, contary to a sudden opinion delivered in July,
1664, at the Assizes in Surrey, in Arthur Armstrong's case, for she is not so
much as his wife de facto.' 1 Hale, P. C. 693. So
in East's Pleas of the Crown the rule is thus laid down: 'The first and true wife
cannot be a witness against her husband, nor vice versa; but the second
may be admitted to prove the second marriage, for the first being proved she is
not so much as wife de facto, but that must be first established.' 1 East,
P. C. 469. The text of East is supported by the following citation of authorities:
1 Hale, P. C. 693; 2 M. S. Sum. 331; Ann Cheney's Case, O. B. May, 1730,
Sergt. Foster's Manuscript. In
Peake's Evidence (Norris), 248, it is said: 'It is clearly settled that a woman
who was never legally the wife of a man, though she has been in fact married to
him, may be a witness against him; as in an indictment for bigamy, the first marriage
being proved by other witnesses, the second wife may be examined to prove the
marriage with her, for she is not de jure his wife.' Mr.
Greenleaf, in his work of Evidence, vol.iii.sect. 206, says: 'If the first marriage
is clearly proved and not controverted, then the person with whom the second marriage
was had may be admitted as a witness to prove the second marriage, as well as
to other facts not tending to defeat the first or legalize the second. There it
is conceived she would not be admitted to prove a fact showing that the first
marriage was void,--such *315 as relationship within the degrees, or the
like,--nor that the first wife was dead at the time of the second marriage, nor
ought she to be admitted at all if the first marriage is in controversy.' The
result of the authorities is that, as long as the fact of the first marriage is
contested, the second wife cannot be admitted to prove it. When the first marriage
is duly established by other evidence, to the satisfaction of the court, she may
be admitted to prove the second marriage, but not the first, and the jury should
have been so instructed. In
this case the injunction of the law of Utah, that the wife should not be a witness
for or against her husband, was practically ignored by the court. After some evidence
tending to show the marriage of plaintiff in error with Emily Spencer, but that
fact being still in controversy, Caroline Owens, the second wife, was put upon
the stand and allowed to testify to the first marriage, and the jury were, in
effect, told by the court that if, from her evidence and that of other witnesses
in the case, they were satisfied of the fact of the first marriage, then they
might consider the evidence of Caroline Owens to prove the first marriage. In
other words, the evidence of a witness, prima facie incompetent, and whose
competency could only be shown by proof of a fact which was the one contested
issue in the case, was allowed to go to the jury to prove that issue and at the
same time to establish the competency of the witness. In
this we think the court erred. It
is made clear by the record that polygamous marriages are so celebrated in Utah
as to make the proof of polygamy very difficult. They are conducted in secret,
and the persons by whom they are solemnized are under such obligations of secrecy
that it is almost impossible to extract the facts from them when placed upon the
witness stand. If both wives are excluded from testifying to the first marriage,
as we think they should be under the existing rules of evidence, testimony sufficient
to convict in a prosecution for polygamy in the Territory of Utah is hardly attainable.
But this is not a consideration by which we can be influenced. We must administer
the law as we find it. The remedy is with Congress, by enacting such a change
*316 in the law of evidence in the Territory of Utah as to make both wives
witnesses on indictments for bigamy. For
the error indicated the judgment of the Supreme Court of the Territory of Utah
must be reversed and the cause remanded to that court, to be by it remanded to
the District Court, with directins to set Court, with directions to set and award
a venire facias de novo. So
ordered. Copr.
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